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Velez v. SCL Health-Front Range, Inc

United States District Court, D. Colorado

December 23, 2015

SUSIE VELEZ, Plaintiff,
SCL HEALTH-FRONT RANGE, INC., d/b/a Exempla St. Joseph Hospital, Defendant.



The matter is before the Court on the Motion for Summary Judgment [Docket No. 25] of defendant SCL Health Front Range, Inc. (“St. Joseph Hospital”). This Court has jurisdiction pursuant to 28 U.S.C. § 1331.


This case arises out of defendant’s allegedly wrongful termination of plaintiff’s employment. Plaintiff Susie Velez worked as a registered nurse (“RN”) in the operating room (“OR”) at defendant St. Joseph Hospital until her discharge on April 15, 2014. Docket No. 25 at 3, Statement of Undisputed Material Fact (“SUMF”) 1. St. Joseph Hospital addressed safety and performance issues with plaintiff on several occasions between 2008 and 2014 through annual performance reviews, Personnel Management Interviews (“PMI”), and corrective action forms. Id., SUMF 2-3. On December 20, 2012, RN Denise Huckfeldt, Ms. Velez’s manager, and RN Sara Nelson, the OR Clinical Educator, met with Ms. Velez to review basic concepts of prepping a patient for surgery. Id., SUMF 4; Docket No. 25-2 at 12, 14. Ms. Nelson found that plaintiff “struggled to retain certain information” and was “not methodical about prepping motions.” Docket No. 25 at 4, SUMF 5. After that meeting, Ms. Nelson assigned plaintiff to a different campus and required her to “strictly practice prepping” surgical sites under the supervision of RN Tom Baker. Id., SUMF 6.

Sometime in early 2014, RN Priscilla Olmstead became the manager of the OR. Id, SUMF 7. Sometime in February 2014, RN Jason Wojciechowski became the shift specialty coordinator in the OR. Id., SUMF 8.

On January 26, 2014, plaintiff began an approved Family Medical Leave Act (“FMLA”) leave after requiring emergency surgery. Id., SUMF 9. On March 10, 2014, plaintiff’s physician cleared her to work without any restrictions. Id., SUMF 10. On March 10, 2014, St. Joseph’s occupational health physician cleared plaintiff to return to work without any restrictions. Id., SUMF 11. Plaintiff returned to work on March 10, 2014. Id. at 5, SUMF 16. Plaintiff testified that St. Joseph Hospital approved her FMLA leave and complied with its FMLA policy, and that no one at St. Joseph gave her any trouble about taking FMLA leave. Id. at 4, SUMF 12-13. Plaintiff testified that St. Joseph Hospital treated her fairly in regard to her FMLA leave. Id., SUMF 14; Docket No. 25-1 at 5. Plaintiff admitted that she returned to work in the same position as RN in the OR and that she received the same hours and pay upon returning to work as she held before her FMLA leave. Id. at 5, SUMF 15-16. Plaintiff testified that, upon her return, she needed some assistance to “relearn” some skills for her position, which St. Joseph Hospital provided. Id., SUMF 17.

On March 31, 2014, about two weeks before her termination, plaintiff received her performance review for the year 2013, which rated her as a “solid performer” and stated that she was “a welcome asset to the CP/PV team.” Docket No. 26 at 6, ¶¶ 6-8. Ms. Velez was rated as “Superior” or “Solid” in all categories except for attendance. See Docket No. 26-3 at 1. In particular, on a scale of 1 (worst) to 10 (best), she received an 8 in the areas of “Critical thinking & Clinical Decision Making, ” “Clinical Competency, ” and “Act Safely.” Id.

On April 4, 2014, St. Joseph Hospital notified plaintiff that she would receive a raise in her hourly rate. Docket No. 25 at 7, SUMF 36. St. Joseph Hospital informed plaintiff that, because she was at the top of her pay grade, she would receive a lump sum payment in lieu of the full raise, to make her raise approximately 2.5% going forward. Id. at 8, SUMF 37. St. Joseph Hospital’s policy regarding lump sum payments in lieu of an hourly rate increase states that employees “must be on the payroll, employed and in good standing at the time of the lump sum payment in order to receive” the lump sum payment. Id., SUMF 38.

On April 5, 2014, Dr. Edwin Lee, an anesthesiologist, sent an email to Mr. Wojciechowski, in which he raised several physicians’ concerns about plaintiff’s performance as an RN in the OR. Id. at 5, SUMF 20.[2] The email reported that on March 18, March 20, March 31, and April 1, 2014 plaintiff failed to follow instructions, failed to respond to physicians’ requests, and failed to correctly perform certain aspects of her job. Id., SUMF 21. Dr. Lee’s email further reported that Ms. Velez lacks focus, makes errors in prioritizing what is important, and that “the reason nothing bad has happened so far is that other people in the room (anesthesiologists, OR staff, surgeons) have been able to compensate for the issues before anything happens . . . .” Id. at 5-6, SUMFs 22, 23. When Mr. Wojciechowski received Dr. Lee’s email on April 8, 2014, he forwarded the email to the OR Manager, Ms. Olmstead. Id. at 6, SUMF 24.[3] On April 8, 2014, Mr. Wojciechowski spoke in person with Dr. Lee to investigate Dr. Lee’s concerns. Id., SUMF 25.

On April 8 or April 9, 2014, Mr. Wojciechowski spoke with Drs. Thomas Rehring, Leo Alfaro, and Christopher Johnnides to investigate Dr. Lee’s reports. Id., SUMF 26; Docket No. 25-4 at 4. Drs. Lee, Rehring, Alfaro, and Johnnides all found Ms. Velez to be unsafe and stated that they were uncomfortable with Ms. Velez in their operating rooms. Docket No. 25 at 6, SUMFs 27, 28; Docket No. 25-4 at 4.[4] St. Joseph Hospital had not previously received any complaints from Drs. Jason Shofnos, Daniel Maher, Rehring, or Alfaro related to performance issues on March 18, March 20, March 31, or April 1, 2014 concerning plaintiff. Docket No. 26 at 6, ¶ 4. St. Joseph Hospital had not received any concerns from other anesthesiologists, OR staff, or surgeons that they had to compensate for Ms. Velez’ performance issues. Id., ¶ 5.

On April 10, 2014, plaintiff failed to properly manage the pulse volume recording machine (“PVR”) and created a dangerous situation in the OR. Docket No. 25 at 6, SUMF 29; Docket No. 25-4 at 6-7.[5]

The next day, on April 11, 2014, St. Joseph Hospital suspended plaintiff pending investigation. Docket No. 25 at 7, SUMF 30. On or about April 12, 2014, Ms. Olmstead explained St. Joseph’s safety concerns to plaintiff. Id.; Docket No. 25-1 at 6. Plaintiff did not dispute or respond to the concerns in writing or otherwise. Docket No. 25 at 7, SUMF 31. On April 15, 2014, St Joseph Hospital discharged plaintiff because she: (1) made errors in prioritizing what is important in heart/vascular cases; (2) lacked necessary focus; (3) was unable to operate necessary equipment; (4) lacked urgency and was slow to respond in urgent situations; (5) failed to listen to physician instructions; (6) made errors in preparing patients for surgery; and (7) generally demonstrated poor work quality. Id., SUMF 33. Plaintiff admitted that no one at St. Joseph Hospital stated plaintiff was being discharged for taking FMLA leave and that no one at St. Joseph Hospital said anything negative about her FMLA leave. Id., SUMF 34-35.

Plaintiff asserts a Colorado common law wrongful termination claim, an FMLA retaliation claim pursuant to 29 U.S.C. § 2615(a)(2), and a Colorado Wage Claim Act (“CWA”) claim pursuant to Colo. Rev. Stat. § 8-4-101 et seq. Docket No. 7 at 5-6. On April 24, ...

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